After a long struggle, Sri Lankans have a right to demand information from those who govern them, but Kishali Pinto-Jayawardena says the new law faces many challenges.
Sri Lanka’s Right to Information (RTI) Act is about to go into effect. When legislators unanimously passed the law in mid-2016, it was the culmination of a 15-year struggle. Since previous governments scrapped the first draft of a Freedom of Information (FOI) law in 2004, fearing that it would cause difficulties for politicians, it seemed almost inconceivable that the effort had finally succeeded, more than 12 years later.
Watching the event, telecast live, I held my breath. But it was almost an anti-climax as the largely pedestrian perorations in the country’s legislative assembly wound to a sputtering close, and it was passed by the House with minimal amendments.
The Bill’s history had implied a stormier finale. Even when Sri Lanka’s unity government of 2015 carried out its campaign promise to support the RTI law, it was an agonisingly slow process. Among many hiccups was an ultra-nationalist attempt by politicians sympathetic to the former President, Mahinda Rajapaksa, to condemn what they described as a conspiracy to undermine national security.
None of these attempts were successful, and the Rajapaksa rump in the national legislative assembly voted for the Bill, despite almost visibly grimacing as they did so. Public pressure was too great, with Sri Lanka’s media, including the national Editors Guild, comprising the mainstream editors of all three languages – Sinhala, Tamil and English – throwing its weight solidly behind the Bill. This ‘perfect storm’ of progressive forces was rare in a fractured and disorganised society struggling to come to terms with two decades and more of vicious institutional degeneration, with the greatest impact on watchdog institutions of democracy, including the judiciary, the public service and the media itself.
Opposing forces had little option but to go along with the tide of reform sweeping the country following the surprise election of Maithripala Sirisena, previously a largely obscure minister under Rajapaksa, to the all-powerful executive presidency in January 2015. Sirisena challenged his erstwhile chief after Rajapaksa called the election two years early, and after parliamentary elections seven months later, the ousted president suffered another blow when the United National Party (UNP) formed a governing coalition with Sirisena’s Sri Lanka Freedom Party (SLFP).
Even before the Rajapaksa nine years of misrule (2005-2014), Sri Lanka’s politicians had not been noted for their affection for the Right to Information law. Rajapaksa was famous for his outrageous proclamation that the country did not need an RTI Law: if citizens wanted information, he said, they could just approach him.
An effort to enshrine freedom of information in law, initiated by the UNP’s Prime Minister, Ranil Wickremesinghe, was nullified when former President Chandrika Kumaratunga, heading an alliance in fierce opposition to the UNP, dissolved Parliament in a bid to seize power back from the Wickremesinghe government. It was a classic case of political expediency trumping the welfare of the country. Now, since both Kumaratunga and Wickremesinghe are united against the Rajapaksas, it might seem they have learned their lesson.
But despite the unity government’s promising start last year, gaps between President Sirisena and Prime Minister Wickremesinghe appear to be widening where political accountability is concerned. Behind their cordial smiles on camera, serious differences of opinion have arisen, touching on almost every aspect of the reform process. Unwisely ambitious proposals for constitutional reform have reawakened atavistic fears of the Sinhala Buddhist majority, while a transitional justice process has not been taken to the people – neither the Tamil and Muslim inhabitants of the north and east, who were the direct victims of decades-long ethnic conflict, nor in the Sinhala-dominated south.
The outcome is rising popular anger and resentment, which is being exploited to maximum effect by former President Rajapaksa and his chauvinistic forces. Promises by the new government to ‘catch the Rajapaksa rogues’ have faltered, partly because favourites of the old regime have been retained in key positions in law enforcement and the public sector, but also due to the shortsightedness of the Government and its allies in civil society.
Instead of taking its reform message directly to the Sri Lankan people, and effecting a widespread clean-up immediately after coming into power, the coalition’s key members accentuated the political divide by choosing to filter their message instead through their separate political party mechanisms. Both the President and Prime Minister have been putting the interests of their own parties first, with the national interest appearing to take a back seat.
This descent into political jockeying has disillusioned voters who ejected Rajapaksa from power because they saw him converting himself into a near-monarch. So even as the RTI Act is due to become operational next month, it has been overtaken by dire predictions.
In principle, the law is undeniably progressive. Ranked as the ninth best in the world by the Canadian Centre for Law and Democracy and surpassed only by India’s RTI law in the region, it applies to all bodies established under the constitution and all government entities, including provincial councils and local bodies, the legislature and the judiciary. All these entities must now appoint information officers trained and tasked to handle information requests coming their way. Such requests must be attended to within defined time limits, and information officers must give reasons if information requests are refused.
All listed exemptions to providing information, including national security, are subject to public override. This was no easy victory, given Sri Lanka’s obsession with secrecy. Commendably, the Act also overrides all enacted law inconsistent with its provisions, including a British colonial-era Act which prohibits disclosure of vaguely-defined ‘official secrets’.
The RTI Act establishes a five-member RTI Commission as the main monitoring and appellate body, the members of which are appointed by the President on the recommendation of Sri Lanka’s Constitutional Council. The recommendations must include one nominee each of the Bar Association, Sri Lanka’s editors, publishers and media persons and, lastly, of civil society.
But challenges ahead should not be underestimated. Sri Lanka’s political culture has long been to deny information. Its transformation to a new information ethos will be painful. Moreover, the country has a long and sad tradition of theoretically excellent laws that have not been implemented with political vigour. It is to be hoped that the RTI Act, No 12 of 2016 will not fall into that same dispiriting category. Collective political will must be demonstrated in practically implementing the Act, but Sri Lankans, familiar with tales of woe rather than positive advances, may justly be proud of it.